The Cyberlaw scholar

The intense man with the jutting beard captivated the smattering of well-fed guys in dark suits and shiny shoes during a Federalist Society for Law and Public Policy Studies conference in Washington, D.C.

The intense man with the jutting
beard in the black Converse All-Stars captivated
the smattering of well-fed guys in dark suits
and shiny shoes sitting in a small ballroom during
a Federalist Society for Law and Public Policy
Studies conference in Washington, D.C.

The man in sneakers did not offer an orchestrated
presentation like the stiff speakers who preceded
him.

It was more like jazz - an off-the-cuff exploration
in his emphatic, stew-thick Brooklyn voice, his
hands gesticulating wildly, coming together to
form circles and squares, separating into fists
and blades, conveying his view that, for example,
as governments around the world collude on issues
of cyberspace law, such "Orwellian" displays
of power constitute the "biggest threat" to the
future of the Internet.

And so David Post - former renowned scholar
of yellow baboons in Kenya's Amboseli National
Park; former tenure-track Columbia University
anthropology professor; former clerk for U.S.
Supreme Court Justice Ruth Bader Ginsburg; former
attorney in a prestigious Washington, D.C., law
firm; practicing banjo plucker, guitarist, singer,
pianist and harmonica player with the band Bad
Dog; practicing law professor; practicing admirer
of most things Jeffersonian; and episodic opera
fanatic, among many other things - wrapped up
the balance of another afternoon dedicated to
convincing those who will listen that cyberspace
is mysterious, that cyberspace is a place and
that a flourishing cyberspace may demand different
rules than the rest of the world.

This is part of the public side of Post, who
is also co-director of the Cyberspace Law Institute
at Temple University in Philadelphia. He teaches.
He speaks at symposia, conferences and panels.
He testifies before Congress, and yes, even there
in the lockstepping Brooks Brothers vastness
of Capitol Hill, he has been spotted wearing
bright red sneakers.

Post has become one of the Internet's premier
intellectuals. He writes constantly, having churned
out at least 60 articles about cyberspace since
the mid-1990s. He has been particularly active
in the development of the Internet Corporation
for Assigned Names and Numbers, the organization
that is assuming stewardship of the Internet's
domain name system. Post has dogged some of its
chief mandarins with incessant, difficult questions,
undermining their logic from time to time, never
giving up.

"He provokes people," says Esther Dyson, who
served as ICANN's chairwoman during the first
year of its existence. Dyson says she isn't always
happy with Post's ICANN involvement.

The 49-year-old Post is best known for his indefatigable
pursuit of the metaphor of cyberspace as a real
place, pushing the trope so hard that it becomes
more like an axiom than an analogy.

"One of the critical things is the persistence
of cyberspace, the fact that there are groups
with whom I interact that are still there even
though I'm here. We're having this lunch, I'm
going to go back to my office and you'll go to
your office and we will rejoin something that
was persistent, a discussion group or a Web site
or whatever," he says over a buffet lunch at
a sprawling, subterranean Indian restaurant in
Washington, D.C. "We left, but it didn't disappear.
It's not like hanging up the phone. This is a
persistent social space that people can enter
and leave at their option. And because it's a
persistent social space, I think we can talk
about rules and norms in a coherent way that
we cannot talk about with telephones."

The metaphor colors most of Post's thinking
about the Net, and it fuels his libertarian bias
about power and society. In short, Post believes
that people should be trusted more than governments
or other instruments of power, such as ICANN.

And so Post is vigilant. When organizations
start angling for control over the Internet,
he is likely to wade into the fray. "Governments
assert at their core a monopoly power that corporations
would like to assert, but typically they cannot,"
Post says. "Most of the time, I'm more concerned
about governmental power than corporate power."

Now, Post is working on a book, tentatively
titled, Declaring Independence: Notes from
Jefferson's Cyberspace, in which he will
illustrate how the same debates that occurred
in the 18th century about the New World - what
it is, how we govern there, who owns what there
- are taking place now about the Net.

For example, English authors such as Charles
Dickens were furious that people could take their
books to America, reproduce them and distribute
them, all without remunerating the authors, he
says. The same issue, of course, is alive today,
with brick-and-mortar artists such as Metallica
railing against Napster's free music swapping
service.

At the same time, there were people such as
Alexander Hamilton, who worried that without
fast, firm action by a strong, central government,
America would unravel. And others, such as Thomas
Jefferson, celebrated the liberty that the frontier
offered and argued for more decentralized power
sharing through the states.

Post, who has long been interested in the founding
fathers, says that the more he read about early
American history, the more he saw contemporary
camps of Hamiltonians and Jeffersonians battling
over regulatory and jurisdictional issues surrounding
the Internet. "There were a lot of people very
excited about cyberspace, and a lot of people
who just seemed worried all the time," he says.
"There is this rush to fix everything. It's not
broken. It's about as unbroken as one could imagine
anything could be."

Post's libertarian perspective on the Net has
had some influence on policy makers.

"He was critically important in my thinking
as a trade commissioner and looking at privacy
in cyberspace," says Christine Varney, a former
Federal Trade Commissioner who attended law school
at night with Post at Georgetown University in
the 1980s and remains a friend. "He brings to
bear the enormous intellect that he has on whatever
issue he is engaged with. He has done more creative,
out-of-the-box thinking on Internet issues than
just about anyone."

In law school, Varney says, Post was irrepressible.
"Law school was about conformity," she says.
"He was extraordinarily successful at law school,
and completely escaped that aspect of it. . .
. Status meant nothing to him. He would stand
up with a professor and pick the professor's
argument apart. Professors would stand dumbfounded
after a withering Post review."

Becky Burr, the former Clinton administration
official who led the government's efforts to
create ICANN, also attended law school with Post
and calls him a "true radical."

"David wants to find and articulate the right
solution, not necessarily the one that is achievable,"
says Burr, who, like Varney, remains a close
friend of Post's. "That is extraordinarily hard
to deal with if you are a person who respects
his intellect and understands change in a more
organic way."

Ginsburg, for whom Post has twice worked as
a clerk, says his "bright mind" made him highly
attractive to her as an employee. She gave Post,
who was the primary caregiver of his two young
children at the time, broad job flexibility,
letting him work out of the house and appear
at the office at irregular hours. Ginsburg recalls
that Post has a passion for opera, and even remembers
the decidedly unconventional title of a paper
he submitted to her when he applied for his first
clerkship: The Law of Contracts as Revealed in
Wagner's 'Ring Cycle'.

Post, who lives near the National Cathedral
in Washington, D.C., with his wife, economist
Nancy Birdsall, and his two teenage children,
says he has "zillions" of hobbies, from bird
watching to astronomy to biking. His relationship
with opera swings between fanatical and disinterested.
During his manic opera phases, he has several
times sat through productions of the entire 21-hour
Ring Cycle.

Post models himself after Jefferson, he says,
a man with endless enthusiasm and interests,
and an eagerness to say, "I don't know."

Jefferson, who, like Post, considered himself
a scientist first, always found unanswered questions
"more interesting [than] what he knew,"
Post says. "He wanted to gather everything in
one place and then say, 'What's next?' As science
proceeds, it's constantly pushing out that border,
and I find that very interesting. It's not a
lawyer's way of looking at the world."

Post, the law professor, adds: "There is something
about the law that looks for certainty and rules."

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